Heard learned counsel for the parties and perused the record.
This writ petition has been filed challenging judgment dated 08.12.2008 passed by the Prescribed Authority allowing the release application against the petitioners and the judgment in Misc. Appeal dated 07.08.2010 passed by Addl. District Judge, Court No. 9, Agra dismissing the appeal and affirming the judgment of the Prescribed Authority.
Brief facts of the case are that the respondent-landlord filed release application under Section 21 (1) (a) of Act No. 13 of 1972 (hereinafter referred to as Act) vide P.A. Case No. 57 of 2002 with the allegations that the respondent is owner landlord of the premises no. 21/24, Chimman Lal Road, Freeganj, Agra in which Shri Harendra Kumar Agarwal was the tenant and after his death, petitioners are the tenant. According to the respondent, the accommodation in question consists of a hall, tin shed and 03 small rooms over an area of 300 sq. yards on the ground floor of which the petitioners claim to be tenant @ Rs.1200/- per month. The accommodation is used for commercial purposes i.e. manufacturing of spare parts of generators.
The respondent further alleges that his family consists wife, 04 sons. It is stated that the respondent is carrying on business of timber in premises no. 4/162, Bans Darwaza, Kutchery Ghat, Agra and that house is property of joint Hindu family. Though the House No. 4/162 is a big house in which respondent is co-sharer and is carrying on business of timber along with his sons in a accommodation measuring 10 x 15 feets. The business is being run in the name and style of M/s Baba Timber. Eldest son is carrying on business as a Proprietor and second son Rajiv Bansal is carrying on business as Broker in timber and the premises in dispute is required for settling his two youngest sons, Sanjeev Bansal and Amit Bansal in business.
The petitioners-tenants filed written statement denying the need of the landlord-respondent. According to the petitioners, respondent has got sufficient accommodation in the building situate near Kutchery Ghat, where he is carrying on timber business along with his sons, the need of two sons is not genuine. They are also carrying business with their father in their own houses near Kutchery Ghat and further asserted that petitioners have got no other accommodation where they can shift their business though attempt for the alternative accommodation was made by them. It was averred that petitioners also gave an offer of leaving half of the front portion of the shop in dispute and thereafter two third of the accommodation to fulfil alleged need of the two sons of landlord-respondent, though according to him the need of the sons was neither bonafide nor genuine. Before the Prescribed Authority, parties filed affidavit and other evidence. Petitioners moved application for inspection of the premises in dispute for the purpose of releasing half portion in favour of the respondent to satisfy alleged need settling sons of respondent.
The case of the landlord-respondent in the court below was that the petitioners have purchased a plot measuring 404 Sq. meters situate in Neeraj Nagar, Agra and that he can shift there, hence no hardship would be caused to the petitioners, but this suggestion was not accepted by them on the ground that he was not in a position to raise construction on the plot purchased by him and further Neeraj Nagar is a residential area and as such the petitioners offered before the Prescribed Authority to leave half of the front portion of the shop measuring 150 Sq. meters and subsequently now offered for leaving 2/3rd portion of the shop on front side in favour of the landlord.
It was mentioned in the release application that the petitioners carrying on business of manufacturing Generator parts. The petitioners also admitted that they are carrying on business of parts of the Generators, though the fact is that they filed agreement between the parties in the earlier release proceedings which resulted in compromise between father of the petitioners and the respondent. The compromise was filed along with amendment application supported by supplementary affidavit.
Subsequently, the amendment application was allowed by order dated 31.8.2010 after giving opportunity to file objection to the counsel for the respondent-landlord. As the counsel for the respondent-landlord also did not propose to file counter affidavit and presses for hearing the matter at the admission stage itself. The petition is being heard and decided finally with the consent of the counsel for the parties.
Learned counsel for the petitioner has placed paragraph 2 of the release application and its reply in the written statement as under:
"That the said building is the tenancy of the opposite parties was being used by them for commercial purposes and the opposite parties were manufacturing generator equipments and allied equipments in it".
Per contra it has been submitted that as regards para 2 of the Release Application, it is a fact that the opposite parties are using the premises in dispute for commercial purpose and are manufacturing generator and diesel engine equipments and allied equipments in the premises in question.
The counsel has then pleaded paragraph 11 of the compromise agreement between the parties on basis of which the earlier release proceedings were compromised by enhancement of rent of Rs.1200/- per month, wherein it was also agreed that the premises will be used only for commercial and manufacturing purpose. The relevant clause is as under:
"YAH KI DWITIYA PACHHA KIRAYEDARI WALI JAGAH ME SIRF KARKHANA VAYAPAR KE LIYE UPYOG KAREGA. VAH KOI GAIR KANOONI VAYAPAR NAHI KAREGA. YADI KOI GAIR KANOONI VAYAPAR KARTA HAI TO PRATHAM PACHHA KO BEDAKHAL KARNE KA ADHIKAR RAHEGA".
Counsel for the petitioner then submitted that there is evidence in the shape of agreement between the parties, which meets out the case for exemption of Act No. 13 of 1972, therefore, from the admitted position Release Application was not maintainable under Section 21(1) (a) and the petitioner was entitled to exemption under Section 2 (1), clause (d) of the Act, though this point was not raised before the courts below, but for the court it is pure question of jurisdiction as the facts are admitted, therefore, according to the judgments rendered by the Apex Court and the High Court such a plea can be raised even at the stage when mater is pending before the Supreme Court. It is stated that in the circumstances the petitioner is entitled to raise the plea of exemption, which goes to the very root of the matter. There being a patent lack of jurisdiction in entertaining application under Section 21 (1) (a), hence Release Application was not maintainable and is liable to be rejected on the ground of lack of jurisdiction. In support of above contention the counsel for the petitioner has relied upon the following decisions:-
(1) 1996 SC 1819 (16) pages 13-18 (2) 1973 SC 2391 (6) Pages 19-22 The second leg of argument is regarding willing offer of the petitioner to vacate part of the shop by which the alleged need of respondent-landlord is fulfilled. It is stated that the courts below have not considered the plea or offer of the petitioner of giving 2/3rd land in its correct perspective and have illegally not appointed Commissioner seeking report in respect of part release of the shop in question. It is submitted that the area of the shop is 300 Sq. meters. The petitioner showed willingness to vacate front portion of the shop measuring 150 Sq. meters; that Rule 16 (1) (d) framed under Act No. 13 of 1972 provides that if the need of the landlord is satisfied by the part release then that part accommodation may be released. The relevant clause (d) reads as under:-
"(d) where the tenant's needs would be adequately met by leaving with him a part of the building under tenancy and the landlord's needs would be served by releasing the other part, the Prescribed Authority shall release only the (other) part of the building".
It is then submitted that though Clause (d) is mentioned in sub-rule (1) which relates to release for the purpose of residence, but this has also been held relevant and mandatory for the purpose of release of the commercial accommodation provided under Sub-rule (2) though that clause has not been repeated in sub rule (2), but it has been held by this Court as well as Apex Court that consideration of part release is relevant for commercial accommodation.
In this regard reliance has been placed by him upon a decision rendered by Supreme Court reported in 2002 (4) AWC 2737 SC wherein it has been held that Section 21 (1) (a) leaves little scope for doubt that the Prescribed Authority is vested with the power to order eviction of a tenant from the building under tenancy or any specified part thereof if it is satisfied about existence of the ground specified in the Section, no distinction is made between residential and non-residential premises in the section, no doubt a similar provision is not found in sub rule (2) of Rule 16, but that does not effect the power of authority under section 21 of the Act.
According to him similar view has been taken by this Court in a decision reported in 2001 ACJ 1190 and that in another decision reported in 2006 ACJ 392, this Court has held that the release allowed on the ground of bonafide need by both the Court below not considering question of part release of accommodation was not proper, therefore, writ petition was allowed in part and the matter was remanded to the appellate court for deciding question of part release. It is further urged that both the courts below have not considered whether the part release would have satisfied need of the landlord and in a round manner have allowed the release of the entire shop and that as the counsel did not propose to file the counter affidavit in spite of opportunity granted by the Court and in that event the averments made in the writ petition are to be accepted as correct in view of the judgments reported in ARC 1984 (2) 270 and ARC 1994 (2) 308.
Per contra learned counsel for the respondent submits that the landlord had sought release of a Big hall and a small room having an area of 300 Sq. yards on Ground Floor of Property No. 21/24 Chiman Lal Road, Free ganj, Hariparwat Ward Agra for the need to settle his two sons namely Sanjeev Bansal aged 34 years and Amit Bansal aged 29 years, in the business of Timber and Plywood; that both the Prescribed Authority as also the appellate authority have concurrently held the need of the landlord bona fide and genuine and that he could suffer greater hardship if the property in dispute is not released to the landlord.
After hearing the counsel for the parties and on perusal of record it appears that the tenant in this writ petition has pressed two grounds i.e.:-
(1) The courts have not considered the offer of tenant to leave a portion in the accommodation for landlord respondent, whereas the law require to consider it.
(2) The release application was not maintainable as the premises was let out for manufacturing purpose are exempted from the operation of Act XIII of 1972 vide SEc. 2 (1) (d).
Ground No. 2 has been raised for the first time in present writ petition, that too by way of amendment. It was neither pleaded nor argued before either of the courts below.
1. Non consideration of offer to leave half portion to the landlord.
The first contention of tenant is based on provisions contained in Rule 16 (1) (d) providing for taking into consideration certain factors for the purpose of requirement of residence by the landlord.
The present case is not for release of residential purpose. Release has been sought for business purpose and the building is occupied by the tenant for commercial purpose. The factors to be considered for business purpose given in Rule 16 (2). Rule 16 (2) do not contain any such clause like clause (d) of Rule 16 (1). This Court in the case of Rafi Ullah vs. Dr. Om Hari and another reported in 2006 (4) ARC 469 (para 15) has held thus:
"A bare perusal of Rule 16 (1) (d) reveals that it is mandatory for the Prescribed Authority to decide part release in respect of residential premises. There is no such provision in Rule 16 (2) which is applicable for the building occupied for commercial purpose".
Reliance has also been placed on the case of Shital Prasad v. Ist Addl. District Judge, Moradabad and others reported in 2002 (2) ARC 255 wherein it is observed as under:
"In view of aforesaid fact, it is clear that there is a distinction made by the legislature in framing two sets of rules; one residential premises governed by Rule 16 (1) and the other is Rule 16 (2) which is made applicable only to the non-residential premises. The present application is for the release of the non residential accommodation, therefore, rule 16 (2) will be made applicable.
In the present case the question of "part release" has been specifically considered and rejected by the court below. The appellate authority in paragraph 16 of its judgment considered this question and has held that disputed accommodation is only 300 Sq. yards which is needed for unemployed sons of landlord Sanjiv Bansal and Amit Bansal for business of Timber and plywood; that wife of the tenant has already got a commercial plot and thus will not suffer comparative hardship. In such circumstances the application 45-C of the tenant regarding offer of 150 Sq. yards for two unemployed sons of landlord is without force and is liable to be rejected.
The question of part release, is a factor to be considered for comparing the respective hardship of the parties. In this case the need is for timber business, which require a large space for to stock and display. Secondly, the tenant already has a commercial plot in the name of his wife, where he can easily shift his business.
2. Release application is not maintainable in view of exemption contained in Section 2 (1 ) (d):
In this regard the only plea and evidence available in this case is that building has been let out and is being used for manufacturing purpose.There is neither any pleading nor evidence that any plant or apparatus installed for manufacturing business of the tenant in the building were also leased out along with the building. On the other hand the pleading in paragraph 9 of the writ petition by the tenant is that the various machines and electric connection in the building belong to the tenant. On this factual back ground provisions of Sec. 2 (1) (d) relied upon by the petitioner are not applicable in the present case. Section 2 (1) (d) provides thus:
"any building used or intended to be used for any other industrial purpose (that is to say, for the purpose of manufacture, preservation or processing of any goods) or as a cinema or theatre, where the plant and apparatus installed for such purpose in the building is leased out along with the building"
In the aforesaid backdrop the decision in AIR 1978 Allahabad 507: Ganga Prasad Gupta v. Smt. Saleha Khatoon and others may be referred to wherein in para 8 it has been held:
"8. This provision can be bifurcated in to two sentences.
(ii) any building used or intended to be used for any other industrial purpose (that is to say, for the purpose of manufacture, preservation or processing of any goods), or as a cinema or theatre.
(ii) where the plant and apparatus installed for such purpose in the building is leased out along with the building.
9............it is not possible to agree with the submissions of the learned counsel for the petitioner that the requirement of taking plant and apparatus is applicable to a case where a building is taken for the purpose of running a cinema or theatre. The purpose of this exemption is that the act will not apply where a building has been leased out along with the plant and apparatus. But, whereas, here a building alone was taken on lease without plant or apparatus, the aforesaid clause will not apply."
(f) The aforesaid view was followed, where the tenant has installed a Atta Chakki, in the case of Smt. Mango Devi v. Prescribed Authority, Aligarh and another reported in 1985 (1) ARC 290 para 3.
Therefore in my considered view and taking support from the above decisions it is clear that Section 29 (1) (d) will not apply to a case where a building, bereft of apparatus or plan, was let out, but it will apply only when a building was let out along with the plant and apparatus. I am also strengthened in my view by the decision rendered in the case of Mohd. Yusuf Ali Khan v. M/s Surendra Trading Co. 1988 (2) ARC wherein it has been held that:-
"Here also not only the building should be leased out but the plant and apparatus must be leased out before the exemption could be attracted".
For all the aforesaid reasons, the writ petition is dismissed. No order as to costs.
Dated: 24.9.2010 RCT/-